Federal judge blocks Nebraska’s same-sex marriage ban

OMAHA, Neb. – A federal judge blocked Nebraska’s gay marriage ban on Monday, and the attorney general’s office immediately appealed the decision to the 8th U.S. Circuit Court of Appeals.

The American Civil Liberties Union of Nebraska sued the state in November on behalf of seven same-sex couples challenging the ban, which passed with the approval of 70 percent of voters in 2000. In addition to prohibiting gay marriage, the ban also forbids civil unions and legalized domestic partnerships.

Same-sex couples miss out on medical and financial benefits that are available to heterosexual married couples, U.S. District Judge Joseph Bataillon said in issuing the injunction, which takes effect March 9.

“All of the plaintiffs have further demonstrated psychological harm and stigma, on themselves and on their children, as a result of the non-recognition of their marriages,” he said in his 34-page ruling. “The plaintiffs have been denied the dignity and respect that comes with the rights and responsibilities of marriage.”

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Bataillon rejected the state’s argument that the ban reflects the will of a majority of voters and promotes family stability. He said he believes the U.S. Supreme Court will ultimately endorse same-sex marriage rights, which have been upheld in four appellate districts.

“The notion that some children should receive fewer legal protections than others based on the circumstances of their birth is not only irrational – it is constitutionally repugnant,” he said.

Bataillon previously struck down Nebraska’s gay marriage ban in 2005, and the 8th U.S. Circuit Court of Appeals reinstated it in 2006.

The Nebraska attorney general’s office filed an appeal right after Bataillon issued the injunction. A spokeswoman for Republican Attorney General Doug Peterson said attorneys in their office were reviewing the ruling and would issue a statement later Monday.

Nebraska’s case could be heard along with pending appeals filed by Missouri, Arkansas and South Dakota after judges in each of those states struck down same-sex marriage restrictions. Oral arguments in those cases are scheduled for May.

Gov. Pete Ricketts, a Republican, said the majority of Nebraskans voted for the constitutional amendment.

“The definition of marriage is an issue for the people of Nebraska, and an activist judge should not substitute his personal political preferences for the will of the people,” Ricketts said.

Susan and Sally Waters of Omaha, who have been together for 17 years and were legally married in California in 2008, are among the couples suing to overturn the ban. They returned to their native Nebraska in 2010.

Sally Waters was diagnosed with terminal breast cancer in 2013, and says that without formal recognition of their marriage, her spouse won’t receive the same tax and Social Security benefits to take care of the couple’s children and will have to pay an 18 percent inheritance tax on half of the property they share, including their family home.

Another plaintiff, Nick Kramer, said he wants the ban to be overturned to give his partner, Jason Cadek, automatic custody rights for his adopted 3-year-old daughter. Kramer and Cadek married in Iowa in 2013.

“We’re excited about this ruling and happy that Judge Bataillon decided that our family was worth recognizing.”

Danielle Conrad, executive director of the ACLU of Nebraska, said “Nebraska’s motto of ‘equality before the law' rings true for gay and lesbian Nebraskans who seek to have their marriages recognized,” following Bataillon’s ruling.

Gay marriage is currently allowed in 37 states and the District of Columbia. The U.S. Supreme Court announced Jan. 17 that it would decide whether same-sex couples have the constitutional right to marry everywhere in the U.S. A decision is expected by late June.